Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, October 18, 2018

Will Canada's legalization of marijuana impact coming legalization votes in Michigan and North Dakota and elsewhere in US?

319030_87b0d3e2e5596a530b55b4f110aa6dbc440af205.png_facebookThe question in the title of this post is my domestic reaction to the big international marijuana reform news of Canadian marijuana legalization efforts becoming a reality.  This new Politico article, headlined "Members of Congress, businesses push for homegrown weed," reports on some of the US echoes of what has transpired in the country up north this week, and here are excerpts:

Washington just got some major peer pressure to embrace the bong.  Its vast northern neighbor Canada legalizes the retail sale of marijuana nationwide Wednesday.  The Canadian cannabis sector is already estimated to be worth $31 billion and upstart marijuana companies have soared on the New York Stock Exchange.

But America’s patchwork of state laws — and federal ban on marijuana — put American pot companies at a high disadvantage. It's unclear whether the push to liberalize U.S. marijuana laws will get very far: Attorney General Jeff Sessions has declared war on marijuana, though his efforts have been dampened by a not-so-hostile White House.  Yet Rep. Dana Rohrabacher (R-Calif.) said last week that the White House plans to address cannabis reform following the midterms.

Rohrabacher's efforts are bolstered by a chorus of congressional and business voices calling on the Trump administration to respond with an “America First” policy on pot. A publicly traded U.S. cannabis company bought a full-page ad in the Wall Street Journal Tuesday with a message to President Donald Trump: Canada will take over the U.S. marijuana market if we don't legalize soon....

A bipartisan group of American lawmakers fumed last month when the U.S. Drug Enforcement Agency gave the green light to importing Canadian marijuana for research purposes. The 15 lawmakers, many of them representing states that have legalized recreational cannabis, protested to the DEA and Sessions that dozens of American companies already requested permission to produce marijuana for study.  They wrote that allowing the University of California, San Diego, one of the applicants, to import marijuana capsules from Canada-based Tilray, Inc., was “adding insult to injury.”

Noting that Trump had issued a "Buy American" executive order, the lawmakers urged the administration to ensure that the domestic need for cannabis research be met by American institutions. The concerns are not just limited to medicinal marijuana. Recreational use is gaining a foothold in U.S. states.  Voters in North Dakota and Michigan will vote on ballot initiatives on legalization on Election Day.

Already, nine states and the District of Columbia, have legalized pot, and 31 others allow medical marijuana. “I think it frankly cries out for a federal solution,” Rep. Kevin Cramer (R-N.D.), now challenging Democrat Heidi Heitkamp for her Senate seat, told POLITICO.  “And this is tough stuff — this is hard stuff to talk about — because I’m a law-and-order congressman, but it’s impossible to ignore what’s going on. … If the federal government itself doesn’t do something to sort of at least provide the banking system that allows for greater oversight and regulation, I think we’re just setting ourselves up for a bit of a rogue industry rather than a highly regulated one.”

Though this piece is focused on federal US policies, I am especially interested in the reality that the two states voting on full legalization this election cycle both border Canada. I have been thinking that voters in the (bluish) state of Michigan were on a path toward legalization even before these developments in Canada, but I have also been guessing that voters in the (deep red) state of North Dakota were not going to be ready to vote for full legalization. But maybe developments up north could change these dynamics among the voters

October 18, 2018 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, International Marijuana Laws and Policies, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, October 7, 2018

Notable discussions of a fully state-run medical marijuana program in Utah

Download (23)Though some may tire of  the talk of "laboratories of democracy" in the context of marijuana reform, I never tire noticing all the different ways state-level reform efforts are producing different approaches to marijuana laws and policies.  And, as explained in this new local piece, headlined "Utah could become the guinea pig for state distribution of medical marijuana," a notable state out west is working toward a novel social and economic experimental approach to marijuana reform.   Here are the details:

The medical marijuana agreement that has brought together warring factions in the Proposition 2 debate could make Utah a national test case — the state itself would distribute the cannabis.  Sure, other governments have mulled such a system, but they’ve generally shied away from direct involvement in dispensing a substance illegal under federal law, said Karen O’Keefe, state policies director for the Marijuana Policy Project....

Gov. Gary Herbert, legislative leaders and advocates unveiled the proposed legislation Thursday that Utah lawmakers are expected to take up during a November special session.  Herbert described it as a step toward establishing a medical marijuana program that Prop 2 opponents, such as The Church of Jesus Christ of Latter-day Saints, could stomach and pledged to put it before lawmakers next month whether or not the ballot initiative passes.

The consensus plan would create a centralized state pharmacy that would package individual medical cannabis orders and ship them to a local health department for pickup by patients who qualify.  Up to five private “medical cannabis pharmacies” would also be allowed under the legislation, but the state-run system would act as an alternative for rural residents who live far from these locations, Sen. Evan Vickers, R-Cedar City, said.  “Is it unique? Yeah, it’s definitely a unique model,” he said, “and that’s why it could very well become the role model ... for the rest of the country."...

Vickers, who is a pharmacist by profession and helped broker the cannabis accord, said he was comfortable that the state wouldn’t run afoul of federal law by getting involved in the distribution of a Schedule 1 drug.  He said he vetted the idea with the Drug Enforcement Administration but wouldn’t disclose who he’d communicated with, saying the conversations were sensitive.

O’Keefe said the Marijuana Policy Project isn’t sure a state-run model will fly in Utah.  The closest comparison for it is in Louisiana, where the state designated two public institutions, Louisiana State University and Southern University, as the only legal growers of marijuana plants.  The Louisiana program isn’t running yet, she said.  But her advocacy group — which has dumped more than $210,000 into the campaign supporting Prop 2 — is satisfied that if Utah’s centralized system fails, the private cannabis pharmacies will keep patients supplied....

Connor Boyack, founder of the libertarian Libertas Institute, said the state-run system was a hotly debated element in the medical cannabis plan.  His group was unwilling to rely on the central fill pharmacy alone and insisted the bill allow private pharmacies as a backup.  “We don’t have high hopes for [the state-run system]," he said, “but to be fair and in good faith, we’re saying, go for it.”

October 7, 2018 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, October 6, 2018

"Marijuana skeptics fear 'de facto legalization' in states"

Download (22)The title of this post is the headline of this lengthy Politico article discussing the politics and practicalities surrounding the relationships between medical marijuana reform and marijuana industry developments.  I recommend the piece in full, and here are excerpts:

With nine states, and the District of Columbia, now allowing the recreational use of cannabis — and more in the pipeline — advocates on both sides of the issue say that medical cannabis programs are increasingly functioning as a Trojan horse for de facto legalization in the 40 states where the politics of legalization aren’t quite ripe yet. And that’s rapidly changing the political and policy dynamics surrounding the emerging industry....

Medicinal marijuana has, indeed, been a driving force for legalization in other states. California’s decision 20 years ago to become the first state to approve the sale of legal medicinal marijuana paved the way for the Golden State to become, as of this year, the world’s largest legal recreational cannabis market. Now, with polls showing public support for medical cannabis in the U.S. at around 90 percent, medical marijuana proponents have shifted their gaze to more conservative states like Kentucky, West Virginia, Oklahoma and Louisiana, or towards enlarging existing medical marijuana programs in places like New Jersey or Pennsylvania.

And while medicinal advocates insist their efforts are simply meant to help patients, opponents say that’s laughable. “There’s a marijuana industry making all sorts of medical claims that, if they were pharma companies, they’d probably be jailed,” said Kevin Sabet, the president and CEO of Smart Approaches to Marijuana, which opposes recreational use policies. “It’s not this bright line between medical and recreational. And there should be a bright line.”...

“This doesn’t have anything to do with cancer patients, or folks with epilepsy, this is about the expansion of the marijuana industry,” he said. “The worst kept secret about most medical marijuana programs is that they often act as de facto legalization. With the expansion of programs in New Jersey or other states, this is often tied to the marijuana industry’s interest to expand the user pool and make money.”

Marijuana proponents don’t necessarily disagree. The growing acceptance of medical cannabis has helped eliminate the stigma around recreational use, multiple sources told POLITICO. We’re far from the days of “Reefer Madness.” “When you have a situation in a state like California, where there are cannabis stores in your neighborhood; when you can see what that looks like, and how much it’s different from the unregulated criminal market; when you can see the effects of businesses moving into storefronts that generate jobs and tax revenue,” then it’s far easier to change the minds of fearful or skeptical consumers — and political leaders — about legalization, says Tom Angell, publisher of Marijuana Moment, one of the nation’s leading trackers of developments and news in the cannabis industry....

California, which legalized the sale of recreational marijuana this past Jan. 1, essentially wrote the blueprint for moving from medicinal marijuana to full-scale legalization. The state’s cannabis market is expected to reach $5.1 billion in the next year — and $25 billion by 2026. That booming business potential on both the medical and recreational side has made it an attractive investment for Canadian companies like CannaRoyalty Corporation, which this year acquired a crowd of California-based cannabis firms that include FloraCal Farms, an “ultra-premium cannabis producer,” Oakland-based Alta Supply, a medical cannabis firm; Kaya Management, a vaporizer manufacturer, as well as RVR, a “large-scale distributor” of both medical and recreational cannabis....

Already, the immediate challenges of transitioning from legal medical to recreational markets have resulted in a flood of legislation aimed at addressing concerns and regulations in the U.S. Angell says that his publication, Marijuana Moment, tracked a whopping 863 bills in Congress related to cannabis this year alone. And along with that legislation has come a parade of “stakeholders invested in keeping legalization in effect — and eroding prohibition on the state and federal level.” That includes lobbyists, industry representatives, attorneys and innovators. What their growing numbers show is that “it will be increasingly hard for opponents to push back on the green wave,” he said.

With tens of thousands of Americans now employed in both the medical and recreational segments of the industry, and billions of dollars being generated in tax dollars for local and state governments, it’s no wonder that “so many ambitious politicians jumping in front of this issue,’’ Angell said. They’re not going back, he predicts: “There are too many people invested in legalization now.”

October 6, 2018 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, October 1, 2018

California officially makes expungement automatic for past marijuana offenses

ImagesAs reported in this USA Today piece, headlined "Landmark California marijuana legislation gives residents chance to 'reclaim their lives'," last night finalized some exciting news for those eager to see marijuana reform greatly impact criminal justice reform. Here are details:

Hailed by advocates as a chance for people to “reclaim their lives,” a new California law will soon make it easier for people with past marijuana convictions to get their records expunged completely, or their sentences significantly reduced.  Assembly Bill 1793 – passed by overwhelming majority in the California state Legislature and signed into law Sunday night by Gov. Jerry Brown – will streamline a previously tedious process that made it difficult for residents with a prior cannabis-related conviction to clear their names.

“This is transformative,” said Rodney Holcombe of the Drug Policy Alliance, a New York City-based national organization that advocates for human rights-driven drug policies. “This creates an opportunity for people to reclaim their lives."

California is not the first state to retroactively allow those with cannabis convictions a chance to reduce or completely remove their past; that distinction goes to Oregon, which legalized recreational weed in 2014.  Colorado, Maryland, Massachusetts and New Hampshire, plus the cities of San Francisco, Seattle and San Diego, have laws similar to Oregon’s, where individuals convicted of some marijuana-related crimes – like possession, cultivation or manufacturing – can work to get their records sealed or expunged.

But California is the first state to automate the system, which lawmakers and bill supporters hope will be a game-changer for thousands of residents who have limited access to student loans, housing and jobs because of their criminal records.  The Judicial Council of California estimates at least 218,000 residents would benefit from the new law.  “The failed war on drugs has, in so many ways, wreaked havoc, damage, pain and anguish on so many Californians,” said Assemblymember Ron Bonta, D-Oakland, who proposed the measure. “This is where government can step in and make it better.”

Pot convictions disproportionately affect communities of color, according to a 2016 study from the ACLU and Drug Policy Alliance.  That study found that while white people consume marijuana at similar rates to black people – and more than Latinos – communities of color are more likely to be targeted by law enforcement for low-level marijuana possession infractions.  In 2010, for example, black people were 3.73 times more likely to be arrested for marijuana possession than white people nationwide.

The measure is California's latest effort to help those with marijuana charges move on with their lives.  Two years ago, Californians passed Proposition 64, which legalized recreational marijuana use for adults 21 and over and allowed for those with criminal convictions to request to have their records erased.  But the process was lengthy and convoluted, requiring people to petition the courts to reduce their sentence for prior convictions, back when cannabis was illegal.  It could also be an expensive process, with costs spanning court fees, hiring a lawyer (to walk people through paragraphs of confusing legal jargon) and time spent away from work and home....

The Drug Policy Alliance tries to educate the public on what it calls “collateral consequences,” the side effects that stem from a sometimes decades-old conviction, Holcombe said.  Those collateral consequences can include not being able to acquire student loans, find meaningful employment or access good housing, among other issues.

Under the new law, the state will do the work to clean up people's records – even if they didn’t know they were eligible.  Some individuals will be able to completely clear their record, while others will see their crimes significantly reduced.  Possession with the intent to sell, for example, will now be reduced from a felony to a misdemeanor.

Here's how it will work: Starting Jan. 1, 2019, the Department of Justice has seven months to review all marijuana cases and send potential petitions to county district attorneys.  DAs will have one year to challenge or grant the petition to change residents' marijuana-related convictions.  Priority will be given to those currently serving time.  “Prop. 64 provided redemption and rehab and a chance to rebuild those lives – these expungement and reductions are a big part of that,” Bonta said.  “I wanted to make sure that the promise in Prop. 64 was kept.”...

Holcombe and the DPA are hopeful that if California's landmark law is successful, other states could adopt similar measures.  “Popular opinion has changed so much,” Holcombe said. “Lots of support has already been generated around the folks who have been convicted and are still burdened by these collateral consequences – and there’s growing interest in remedying that.”

Regular readers likely know of my affinity for this kind of reform based on my recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which calls for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.   And I have blogged a lot about these issues here, as this partial sampling of some recent postings reveals:

October 1, 2018 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, August 28, 2018

Has anyone tracked how many times and how many ways state medical marijuana programs have been expanded after inception?

The question in the title of this post was my first reaction to the latest reports on the latest states to expand access to medical marijuana.  This piece from Connecticut on this front is headlined "State Approves Use Of Medical Marijuana For Stubborn Headaches, 7 Other Conditions," and here are the basics:

Medical marijuana may now be prescribed in Connecticut to treat medication-resistant headaches, severe rheumatoid arthritis and several other new conditions, the Department of Consumer Protection announced Tuesday.

The state legislature’s Regulation Review Committee has updated the state’s medical marijuana program regulations to include eight new conditions for adults and two new conditions for patients under 18.

Today, also brings this similar news from Illinois, under the headline "Rauner signs medical marijuana expansion bill allowing drug as painkiller alternative," starting this way:

A measure that could dramatically expand access to medical marijuana in Illinois — making it available as an opioid painkiller replacement and easing the application process for all who qualify — was signed into law by Gov. Bruce Rauner on Tuesday....

No longer will any applicants have to be fingerprinted and undergo criminal background checks.  And those who complete an online application with a doctor’s authorization will get a provisional registration to buy medical cannabis while they wait for state officials to make a final review of their request.

My sense is that this is a common reality that has found expression perhaps multiple time in multiple states: over time, states add qualifying conditions or reduce restriction on access to medical marijuana. I suspect someone somewhere is tracking these developments nationwide, and I think the pace and scope of amendments to state medical marijuana regimes would tell an interesting and significant modern reform story.

August 28, 2018 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, August 23, 2018

"Up in Smoke: Removing Marijuana From Schedule I"

The title of this post is the title of this new paper authored by David Katner now available via SSRN.  Here is its abstract:

With over 600,000 marijuana arrests nationwide, and more Americans being incarcerated than for any other crime in the nation's history, the Controlled Substances Act of 1970 should be amended to eliminate the inclusion of cannabis or marijuana from Schedule I.   Americans spent nearly $6 billion on "legal" cannabis last year alone, and the trend among states has been to legalize the use of cannabis for both medicinal purposes and recreational purposes.   The initial prohibition, the Marijuana Tax Act of 1937  was largely influenced by racially charged propaganda and a lack of any scientific studies of the substance.  By removing the substance altogether from federal regulatory control, states would be allowed to determine for themselves how to regulate the use and dissemination of the substance.  The adoption of state laws recognizing the various medical benefits of the marijuana plant will not have full force until the federal regulatory scheme has been altered.

August 23, 2018 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, August 18, 2018

Newsweek cover story spotlights "How Republicans Learned to Love Marijuana"

Jk77C_Ig_400x400The feature article in the August 24 issue of Newsweek is headlined "Legal Weed: How Republicans Learned to Love Marijuana." The lengthy piece is worth reading in full, and here are excerpts:

[At Texas's] 2018 Republican ­Party convention in San Antonio in June, nearly 10,000 conservative politicians voted to revise the ­party platform on marijuana. The changes included supporting industrial hemp, decriminalizing small amounts of marijuana possession and urging the federal government to reclassify cannabis from a Schedule 1 to a Schedule 2 drug.

These planks, while still some of the most conservative approaches to marijuana policy in the country, were a marked departure from the party’s position a few years prior. And they’re indicative of the ­transformation happening with Republican voters and officials nationwide.

The motives are mixed. Some, like Isaac, were moved by arguments about its medical uses. For others, the shift is an attempt at criminal justice reform after years of racial discrimination. Some conservative lawmakers tout marijuana ­policy changes in the name of federalism and small government, and others say it might be the only bipartisan issue left in Congress. Regardless, Republicans can’t deny that marijuana legal­ization is popular among younger, more diverse voters who could help the party survive....

Senator Cory Gardner, a Colorado Republican, vowed to block the president’s Department of Justice nominees until he received a commitment that his state’s rights would not be infringed [after AG Jeff Sessions rescinded the Cole Memo]. Gardner tells Newsweek that in a sit-down meeting with the president in April, Trump said leaving cannabis laws up to the states was “the right thing to do and that we’re not going back.”

Gardner then went on to create the Strengthening the 10th Amendment Through Entrusting States (STATES) Act, along with Massachusetts Democratic Senator Elizabeth Warren. The bill would eliminate any federal prosecution of marijuana users or sellers in states that had legally ­authorized such actions. “We’re looking at it. But I probably will end up supporting that, yes,” Trump told reporters in June, striking a big blow to Sessions.

In a polarized era, the bill is impressively bipar­tisan. Five conservatives and four liberals co-­sponsored the legislation in the Senate, including names you would never expect to be on the same side — like Jeff Flake and Cory Booker. It has significant “cross-cut appeal,” Gardner says. He hopes the bill will gain momentum after the midterm elections.

But for Republicans, the effort to ensure states’ rights when it comes to marijuana policy is more important than a bipartisan collaboration. “It’s a federalism experiment,” Gardner says. “Republicans who have long been champions of states’ rights can choose this as a moment to prove it.”...

Already, politicians are beginning to see the benefits of supporting the cannabis industry through campaign fundraising. Rohrabacher, who is facing his toughest re-election campaign in three decades and is seen as one of the most vulnerable Republicans in the House, has been rewarded for his pro-weed stance. The congressman has gained $5,000 checks from companies and organizations including Weedmaps, Scotts Miracle-Gro and the National Cannabis Industry Association. Since 2016, Rohrabacher has received more than $80,000 in marijuana industry money.

In the long run, Republican lawmakers may support marijuana decriminalization for the simple fact that it may help them get elected as they play a catch-up game with young, nonwhite voters. An estimated 24 million people ages 18 to 29 cast votes in the 2016 election. In that demographic, Donald Trump lost to Hillary Clinton by an 18-point margin. Millennials are about to inherit the kingdom as the largest voting block in the country, and, according to one poll, over 80 percent believe the drug is safer than alcohol.

August 18, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

Monday, July 23, 2018

"Has the U.S. reached a ‘tipping point’ in marijuana legalization?"

Download (2)The question in the title of this post is the headline of this new Washington Post piece authored by Daniel J. Mallinson and A. Lee Hannah.  I recommend the full piece, and here are excerpts:

Has the U.S. reached the “tipping point” in marijuana legalization?  That’s what one CNN commentator said happened last month when, on June 26, Oklahoma adopted medical marijuana through a ballot initiative....

It’s true that a lot was unusual about the Oklahoma initiative.  The state approved medical marijuana with roughly 57 percent of the vote — despite the fact that the ballot measure was held in a conservative state, during a primary — when only the most committed party members tend to vote — rather than during a general election, is more permissive than many comparable laws, and was opposed by statewide Republican leaders....

Notably, Oklahoma’s voters approved medical marijuana directly, rather than through the legislature.  In our previous research, we found that five states legalizing medical marijuana via ballot initiatives between 1996 and 1999 helped legitimize the effort — and, beginning in 2000, a handful of legislatures followed suit.  Direct democracy is one important way that advocates successfully force the issue in some states — either through successful initiatives, as in Oklahoma, or through the threat of an initiative campaign, as in Ohio, where the legislature quickly passed a medical marijuana law to head off a 2016 initiative sponsored by Marijuana Policy Project.

As a result, as fewer and fewer of the remaining 20 states without any legal marijuana use have mechanisms for such direct referendums, it becomes less and less likely that those states will liberalize cannabis policy.  In that sense, perhaps Oklahoma is not a tipping point....

Direct democracy has furthered marijuana liberalization, assisted by changes in how advocates frame the issue.  Journalists and advocates have been drawing attention to recent research that shows the potential of medical cannabis to treat conditions like PTSD, epilepsy and opioid addiction.  This type of coverage serves to lift the stigma on marijuana use by presenting conditions and patients that are more relatable and sympathetic than treatment for other conditions, or than recreational use.

One of us, Lee Hannah, recently conducted a content analysis of news articles about medical marijuana stories by The Washington Post from 1995 (a year prior to California adopting the first program) to 2017 to determine whether this narrative shift was being seen in news coverage.  Hannah searched the newspaper archives and counted how many articles about medical marijuana were paired with specific medical conditions.

In the period from 1995 to 1999, The Washington Post ran 56 articles about medical marijuana that associated it with cancer, 73 articles that mentioned HIV/AIDS and only 7 articles associating medical marijuana with opioid addiction, epilepsy or PTSD.  That relative emphasis has flipped in the last five years.  The Post continued to make the connection to cancer, in 71 articles, but only 31 articles included HIV/AIDS.  Meanwhile, The Post ran 195 articles that connected medical cannabis to opioid addiction (71), epilepsy (83) or PTSD (41). The results were similar when analyzing coverage in the New York Times.

Some observers argue that evidence so far suggests other policy approaches are more successful than medical marijuana in treating opioid addiction.  But if interest groups can successfully persuade citizens that medical cannabis could help diminish the opioid crisis, conservative voters and state legislatures may be persuaded to make it available....

Whether Oklahoma’s new law is indeed a tipping point, changing public opinion and industry pressures seem to be pushing the federal government and the remaining states to make marijuana available for medical use — and probably, from there, recreational use as well.

July 23, 2018 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Political perspective on reforms, Who decides | Permalink | Comments (0)

Reviewing efforts to ensure marijuana reform is focused on criminal justice and social justice issues

Download (19)As long-time readers should know, much of my interest in modern marijuana reform emerged from my interest in criminal justice reform,  as well as from my frustration that many "traditional" approaches to criminal justice reform seem to move much more slowly than have many modern marijuana reforms.  Given this background, I have always been eager to see, and been most supportive of, proposals for marijuana reform that focus on criminal justice issues.  And this recent Stateline article, headlined "Marijuana Bills Increasingly Focus on Social Justice," effectively reports on encouraging developments in this arena. Here are excerpts from an extended article that should be read in full:

State lawmakers and advocates pushing to legalize marijuana this year aren’t just touting legalization as a way to raise tax revenue and regulate an underground pot market. They’re also talking about fixing a broken criminal justice system and reinvesting in poor and minority communities that have been battered by decades of the government’s war on drugs.

The focus on justice and equity has sharpened over time, longtime pot advocates say, as it’s become clear that such issues should be addressed and that doing so won’t alienate voters — most of whom, polls consistently show, support legal marijuana. Civil rights groups also have raised their voices in legalization discussions.

Now social justice provisions can be found in legalization proposals in both blue and red states, including several of the states where voters will face ballot measures on the issue in November. Social justice also is a talking point for opponents, who argue that allowing weed sales would hurt — not help — low-income and minority people....

Many state lawmakers say they back legalization because, first and foremost, it can be an opportunity to make changes to the criminal justice system and repair the harm done to groups disproportionately arrested for using the drug. “For me, the social justice piece of it is much larger than, I think, the taxing and regulating — although that is important,” said New York Assemblywoman Crystal Peoples-Stokes, a Democrat who represents part of the city of Buffalo and has put forward a bill to legalize weed....

California’s 2016 ballot initiative, which filled more than 60 pages and covered everything from rules for marijuana testing laboratories to expungement of marijuana crimes from criminal records.

The California initiative allowed people with drug convictions to obtain marijuana licenses. It set aside $10 million a year to pay for services such as job placement, legal help, and mental health and addiction treatment for residents of communities hit hard by former drug laws. Passed by 57 percent, the initiative’s success showed that voters support justice and equity provisions — or at least aren’t dissuaded by them...

Missouri has four pot legalization initiatives on the ballot this fall; three focus on allowing medical use of the drug and the fourth on recreational use. The recreational use initiative by Total Legalization, a volunteer operation that isn’t backed by national pro-weed groups, also would require prisoners incarcerated for nonviolent marijuana-related crimes to be released within 30 days and would expunge nonviolent marijuana-related criminal records. Becca Loane, a member of the board of directors for the campaign committee backing the initiative, said her team wants to legalize marijuana completely without waiting for the Legislature to work out the details. “It’s something that needs to be done.”

In North Dakota, a legalization ballot measure also would expunge the records of people with some marijuana-related convictions automatically. And in Michigan, a legalization ballot measure would require state lawmakers to encourage people in communities impacted by the war on drugs to participate in the marijuana industry....

The argument that marijuana legalization will help poor black and Latino people has been made vociferously in New York and New Jersey, where national groups that back legalization, such as the Drug Policy Alliance, have teamed up with clergy and civil rights groups.

New Jersey Gov. Phil Murphy, a Democrat, called marijuana legalization a social justice issue during his campaign last year. New York gubernatorial candidate Cynthia Nixon, also a Democrat, has said she supports legalization because “we have to stop putting people of color in jail for something that white people do with impunity.”...

Nearly two-thirds of black, Hispanic and multiracial people supported marijuana legalization, according to a Stockton University poll of New Jersey adults this spring. That was a higher share than support among white adults, according to a breakdown by race and ethnicity shared with Stateline.

July 23, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues | Permalink | Comments (0)

Thursday, July 19, 2018

Effective explanation of why it is so hard to explain the exact number of "medical marijuana states"

MarijuanamapOver at Marijuana Moment, Kyle Jaeger has this nice new piece on a bit of head-counting (or should I say state-counting) that always sticks in my craw. His piece is headlined "How Many Medical Marijuana States Are There? Advocates Disagree On The Number," and here are excerpts:

Is it 30? 31? How about 45 or 49?

With marijuana legalization efforts moving forward at full steam in states across the country, it can be understandably difficult to keep track of the total number of states that have legalized cannabis in some form, especially when it comes to counting differing medical programs.

In some cases, even national advocacy groups disagree over the actual tally.  For example, the Marijuana Policy Project (MPP) lists 30 legal medical marijuana states, while NORML says the number is 31.  Americans for Safe Access, meanwhile, has an interactive map that provides information about existing cannabis laws in 45 states. So what is the number, really?

If you ask NORML, it’s a plain and clear 31. Paul Armentano, the organization’s deputy director, told Marijuana Moment that it’s based on simple reasoning: there are currently 31 states in the U.S. that have legalized marijuana for medical or recreational purposes (not including more limited, CBD-focused laws in other states, but we’ll get to those in a minute)....

Unlike NORML, MPP determines what constitutes a legal medical marijuana state based on the fact the state passed a law aimed at medical cannabis in addition to an independent analysis of the efficacy of those laws.  That’s why the organization doesn’t include Louisiana in its list of legal states, for instance, even though NORML and others count it.

“Forty-nine states have adopted some form of medical marijuana law, and we feel that the easiest distinction to draw is between those that are effective and relatively comprehensive and those that are ineffective or highly restrictive,” Mason Tvert, MPP’s media relations director, told Marijuana Moment.  “There are some states, such as Louisiana, that could arguably fall into both categories, but our policy experts currently still consider it to be too limited to be considered one of the states that has adopted an effective and comprehensive medical marijuana law.”...

When you hear numbers in the upper 40s, those generally take into account states that allow certain patients to use CBD extracts with low-THC composition, but licensed programs providing those products are few and far between. Generally speaking, legalization advocates don’t consider CBD-only states “legal,” per se, but it’s another factor that can muddle the math.

What consequence, if any, these varying tallies have on public policy is uncertain. Advocates believe, however, that including the CBD-only states is one key factor that led to the passage in 2014, and subsequent extension, of a congressionally approved rider preventing Justice Department interference in medical marijuana states.  Since the text of the measure itself meticulously lists out all of the affected states — including ones like Texas and Virginia, which only have CBD laws — it is that much harder for lawmakers from those states to vote no....

One thing advocates do agree on is the number of states that allow recreational, or adult-use marijuana. That’s nine, plus Washington, D.C.

July 19, 2018 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, July 17, 2018

"Responsible Ohio: Successes, Failures, and the Future of Adult Marijuana Use in Ohio"

The title of this post is the title of this notable new article that was authored by Sean Klammer and got its start in my Marijuana Law and Policy seminar a few years ago. Here is the article's introduction:

On November 3, 2015, Ohioans went to the polls to vote on Issue 3, a ballot initiative to amend the Ohio Constitution to legalize adult marijuana use.  Though other states had legalized medicinal marijuana prior to eliminating prohibition, ResponsibleOhio, the political action committee (PAC) behind the initiative, believed it could skip this preliminary hurdle.  The group worked tirelessly for almost two years to ensure that Issue 3 would become law.  Had it succeeded, the organization would have possessed the blueprint to end prohibition in many other states, if not the entire country.  Yet, despite favorable polling in the months leading up to the election, it became clear that the PAC had miscalculated.  On election night, the initiative was soundly defeated, with Ohioans voting against legalization at a rate of two to one.  The State would have to wait until at least the 2016 presidential election to get another chance at legalization.

Part I of this Essay reviews the history and key players behind ResponsibleOhio as well as the initiative’s path to the ballot.  Part II summarizes the text of Issue 3 and assesses relevant provisions.  Parts III and IV highlight the debate between marijuana activists and prohibitionists, and Part V analyzes why the campaign was ultimately unsuccessful.  Part VI notes that even though Issue 3 did not pass, it led to acceptance of medical marijuana in Ohio and thus set the stage for full legalization in 2020.  Finally, the Essay concludes in Part VII with a reflection on the lessons learned from ResponsibleOhio and gives suggestions on how to best frame a marijuana legalization campaign to appeal to voters in the next presidential election.

July 17, 2018 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, July 13, 2018

"Behind Schedule — Reconciling Federal and State Marijuana Policy"

Nejmp1804408_f1The title of this post is the title of this new Perspectives piece appearing in the The New England Journal of Medicine and authored by Rebecca Haffajee, Robert MacCoun and Michelle Mello. I recommend the piece highly in part because of its terrific graphic under the heading "U.S. Marijuana Policy Milestones, 1970–2018." Here is part of its text:

The present state of conflicting laws seems unstable and suboptimal for rational drug control. Federal regulation that accommodates and reinforces state medical marijuana regulatory regimes would result in a safer, more reliable, more accessible supply of marijuana products. Congress, because it answers to the people and represents the states, appears the most likely branch to move on marijuana policy; it could even be encouraged to act by Canada’s recent legalization of recreational marijuana.  Federal courts are increasingly hearing challenges to marijuana’s Schedule I status but have so far been unwilling to deem Congress’s scheduling determination irrational and therefore unconstitutional.

In Congress, rescheduling marijuana by amending the CSA is one attractive option.  The executive branch, too, can reschedule CSA substances, but the mechanisms are time consuming and unlikely to attract interest within the current administration.  Because considerable evidence now supports marijuana’s therapeutic benefits in reducing chronic pain, nausea, and vomiting in patients with cancer, as well as multiple sclerosis–related muscle spasms, there is a compelling argument that marijuana is more appropriately designated as a Schedule II or Schedule III drug.  Rescheduling would facilitate further study of products for FDA approval, but would not automatically change the severity of penalties for marijuana crimes or alter international treaty obligations, enshrined in the CSA, to ensure that all psychoactive substances are used only for legitimate medical and scientific purposes.

Congress could also remove marijuana from the CSA schedules altogether. This dramatic action could be coupled with legislation authorizing FDA oversight of marijuana products. Whether marijuana’s psychoactive effects preclude this move away from regulation as a controlled substance would provoke considerable debate. Subjecting marijuana products to FDA approval would hinder access initially but ultimately foster a robust system for regulation and research. FDA oversight of marketing would also improve product safety and consistent promotion across states.

The [proposed] legislation [sponsored by Senators Gardner and Warren] represents a third option designed to respect states’ rights — codifying the approach articulated in the Cole Memorandum by amending the CSA to exempt marijuana activities that are lawful in the jurisdiction where they occur. This solution would be more permanent than attorney-general guidance or agreements between states and the attorney general regarding enforcement, which shift with the political winds, and would therefore promote stability for medical users and suppliers. But it would not facilitate research into marijuana harms and benefits, bring products within the FDA’s purview to ensure safety and efficacy, alleviate interstate health risks, or address potential conflicts with international treaty obligations.

We think this third option, which addresses some pressing conflict-of-law concerns such as unpredictable criminal enforcement, is preferable to the current blurred vision of the future of marijuana policy.  Ultimately, a more comprehensive federal regime that perhaps resembles Canada’s recent legalization of recreational marijuana could affirmatively promote health and safety through research and regulation.

July 13, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)

Monday, July 2, 2018

"Mitch McConnell: Drug Warrior, CBD Champion?"

McConnell-bill-would-legalize-hemp-944x531The title of this post is the headline of this effective Rolling Stone article which does a nice job explaining the intricacies of the connections between hemp and CBD product and marijuana and why Senate Majority Leader Mitch McConnell may be greasing the path toward a CBD-friendly world.  I recommend the piece in full, and here are some key excerpts:

CBD’s legality is complicated, to say the least. Without getting into the mind-numbing specifics, let’s just say that reasonable people disagree about whether it is possible for any CBD to be legal, and shops selling CBD products in states like Indiana and Tennessee have been raided by local law enforcement. So in order for mainstream retailers to feel comfortable carrying CBD products and Kentucky’s farmers to subsequently cash in on the CBD craze, McConnell put together legislation making it official. Though he’s focused his hemp legalization rhetoric on helping farmers and bland-sounding industrial products, his true intentions became abundantly clear about two weeks ago, when Sen. Chuck Grassley (R-IA) proposed an amendment that would exclude CBD and other major compounds (called cannabinoids) from the definition of legal hemp.

McConnell shot the proposal down, saying, “I’ve declined to include suggestions that would undercut the essential premise of the bill, namely that hemp and its derivatives should be a legal agricultural commodity.” At no point did he refer directly to the “derivative” that was up for discussion. But anyone paying close attention understood what he was talking about.

“McConnell’s omission of CBD is not a denial of it. It’s simply a tactical political move,” says Carl Cameron, a former Fox News commentator who now works for New Frontier Data, a D.C.-based firm that provides information on the cannabis industry to investors. “He’s trying to help potential supporters avoid criticism in places where opposition to marijuana might be misconstrued and then undermine support for hemp.”

Leslie Bocksor, who runs the cannabis consulting firm Electrum Partners, agrees that McConnell has downplayed the fact that CBD is a primary motivation for legalizing hemp so as to fly below the radar of anti-pot donors and voters. “This is just a way for McConnell to be able to move this forward without taking the political risk in talking about what’s going on, which is, yes, CBD is in so much demand that the supply can’t possibly equal the demand any time in the foreseeable future,” Bocksor says. “This is part of the Kabuki theater of the political environment we’re in today.”

Bocksor himself has embraced this kind of winking reference – hemp as a euphemism for CBD – as a business strategy. For the past few years, he’s been advising the companies he works with to avoid mentioning CBD directly or making any medical claims about what the product can do in order to avoid interference from law enforcement or warning letters from the federal government. Label everything as “hemp extract,” Bocksor says, and the consumer will know you mean CBD, as well as what kinds of health benefits can be expected.

Culturally, hemp has long been seen as a taller and more fibrous cannabis plant than marijuana, but the legal distinction is based only on THC content. Once CBD started to enter the mainstream consciousness about five years ago, pot farmers in states like Colorado and California began to breed strains of cannabis that were high in CBD but contained so little THC that they could be reclassified as “hemp.” Around the same time, the 2014 Farm Bill created a pilot program where state departments of agriculture and universities could register farmers to grow “hemp” — meaning, cannabis that was less than 0.3 percent THC. McConnell’s home state of Kentucky is the second biggest producer of hemp under this program – behind only Colorado. And while most people believe that the hemp pilot program in the 2014 Farm Bill was not created with the intention of causing a boom in CBD products, that is exactly what happened....

For now, the legal status of CBD is still murky. But with McConnell’s support, there is a good chance that the House’s version of the Farm Bill will include a provision to legalize hemp-derived CBD, and potentially open the door a world where you can find CBD soaps and CBD tinctures on the shelves at Target and CVS.

July 2, 2018 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Thursday, June 28, 2018

Highlighting how extraordinary the approval of medical marijuana was in Oklahoma

OK-Yes-788Over at Marijuana Moment, Kyle Jaeger has this terrific new piece reflecting on the extraordinary dynamics surrounding the vote on Tuesday in Oklahoma approving a medical marijuana initiative. I recommend the piece in full, and here are excerpts:

Voters in one of the reddest states in the nation approved one of the most far-reaching marijuana ballot measures on Tuesday, making Oklahoma the 30th state to legalize medical cannabis.

And while advocates and pro-legalization organizers in the state will tell you they weren’t necessarily surprised by the results — with polls consistently showing majority support in the lead-up to Tuesday’s vote, for example — the initiative’s passage by a wide margin (57 percent to 43 percent) is still extraordinary.

In part, that’s because of the political landscape of Oklahoma. The state hasn’t voted for a Democratic presidential candidate since 1964, and its marijuana laws have historically reflected a staunch, prohibitionist mindset. Just four years ago, getting caught consuming cannabis in public twice could land you in prison for up to a decade.

But perhaps even more impressively, the initiative was decisively approved—during a midterm primary election—in spite of the fact that committees in support of State Question 788 were outspent by committees opposed to the measure six-to-one. According to the latest campaign finance records, Oklahomans for Health, which played a leading role in support of the initiative, and Yes On 788 spent a total of about $155,000 during their campaigns based on the latest campaign finance disclosure statements submitted June 26.

Committees opposed to the initiative, Oklahomans Against 788 and SQ Is NOT Medical spent a total of about $920,500 on their anti-legalization campaigns, some of which was used for television advertising against the measure. Supporters, on the other hand, did not have enough funds to go on the air with their message.

Chip Paul, chairman of Oklahomans for Health, told Marijuana Moment that the group’s minimal spending “speaks volume for liberty, freedom, unity… because Oklahoma united around this and made it happen.”...

Unlike pro-legalization campaign committees advancing reform bids in many past state-level elections, Oklahomans for Health did not receive financial contributions from national advocacy groups such as Marijuana Policy Project or the Drug Policy Alliance. Paul said it was better that way because “it means more if we do this for $0 or $10,000.”

Another element of the group’s campaign efforts involved strategically avoiding divisive, partisan politics. While the initiative itself has been characterized as “liberal” because it doesn’t include a list of limited medical conditions that qualify individuals for cannabis, the issue at hand is increasingly bipartisan. A recent survey from the progressive think tank Center for American Progress found a record 68 percent of Americans favor recreational legalization, including 57 percent of Republicans. Support for medical marijuana legalization is even higher, with 93 percent of Americans in agreement that patients should be able to legally access the plant. “For the most, we’ve managed to rise above things that would divide us,” Paul said.

June 28, 2018 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, June 27, 2018

Senate minority leader Charles Schumer introduces "Marijuana Freedom and Opportunity Act"

220px-Chuck_Schumer_official_photoAs reported in this press release, "Senate Democratic Leader Chuck Schumer (D-NY) today formally introduced new legislation to decriminalize marijuana at the federal level."  Here is more from the press release, with its links to the proposed legislation:

Specifically, the Marijuana Freedom and Opportunity Act removes marijuana from the list of scheduled substances under the Controlled Substances Act, effectively decriminalizing it at the federal level.  The legislation allows states to continue to function as laboratories of democracy and ultimately decide how they will treat marijuana possession.  The legislation, however, does not change federal authorities’ ability to prevent trafficking from states where marijuana is legal to states where is not.  The bill also preserves the federal government’s ability to regulate marijuana advertising -- just as it does tobacco -- so that advertisers cannot target children.  Schumer has long advocated for states’ rights when it comes to medical marijuana.

Leader Schumer’s new legislation also takes steps to help communities that have been disproportionally affected by our current marijuana laws.  The bill includes authorization of grant programs designed to encourage states and local governments to allow individuals to seal or expunge marijuana possession conviction records, and it creates a new funding stream to help ensure that women and minority entrepreneurs have access to the new marijuana industries in their states.  The bill also makes new investments in research to fully understand the effect of THC on both driving and public health – particularly in adolescents.  

Leader Schumer’s Marijuana Freedom and Opportunity Act is cosponsored by Senators Bernie Sanders (I-VT), Tim Kaine (D-VA) and Tammy Duckworth (D-IL).... 

A fact sheet on the Marijuana Freedom and Opportunity Act can be viewed here. The full text of the Marijuana Freedom and Opportunity Act can be viewed here. A section-by-section summary of the Marijuana Freedom and Opportunity Act can be found here.

Specifically, Leader Schumer’s new legislation would:

  • Decriminalize Marijuana: The legislation would decriminalize marijuana at the federal level by descheduling it, which means removing marijuana from the list of scheduled substances under the U.S. Controlled Substances Act of 1970;
  • Respect States’ Rights: The legislation would maintain federal law enforcement’s authority to prevent marijuana trafficking from states that have legalized marijuana to those that have not;
  • Level The Economic Playing Field: The legislation would establish dedicated funding streams to be administered by the Small Business Administration (SBA) for women and minority-owned marijuana businesses that would be determinant on a reasonable estimate of the total amount of revenue generated by the marijuana industry;
  • Ensure Public Safety: The legislation would authorize $250 million over five years for targeted investments in highway safety research to ensure federal agencies have the resources they need to assess the pitfalls of driving under the influence of THC and develop technology to reliably measure impairment;
  • Invest In Public Health: The legislation would invest $500 million across five years for the Secretary of Health and Human Services to work in close coordination with the Director of National Institutes of Health (NIH) and the Commissioner of Food and Drug Administration (FDA) in order to better understand the impact of marijuana, including the effects of THC on the human brain and the efficacy of marijuana as a treatment for specific ailments;
  • Protect Children: The legislation would maintain the Department of Treasury’s authority to regulate marijuana advertising in the same way it does tobacco advertising to ensure the marijuana businesses aren’t allowed to target children in their advertisements. The bill also allows the agency to impose penalties in the case of violations;
  • Incentive sealing and Expungement programs: The legislation authorizes grant programs to encourage state and local governments to administer, adopt, or enhance expungement or sealing programs for marijuana possession convictions. The bill provides $100 million over five years to the DOJ to carry out this purpose. 

This is big news not only because it provides still further evidence that "establishment Democrats" are now fully behind federal marijuana reform, but also because Senator Schumer is positioned to be the House majority leader if Democrats retake control of the Senate in either 2018 or 2020. If that happens, Senator Schumer presumably would be most interesting in having his version of marijuana reform considered first among all the competing bills now floating about.

June 27, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, June 26, 2018

SCOTUS provides a good new First Amendment precedent for doctors interested in recommending marijuana

Supreme-court-marijuanaThe modern state medical marijuana laws owe part of their structure to critical lower federal court rulings about the First Amendment's protection of doctors who wish to discuss marijuana use with patients.  In the late 1990s after California voters passed the nation's first medical marijuana law, the federal government threatened physicians who recommended or prescribed a Schedule I drug with possible revocation of DEA registration and exclusion from Medicare and Medicaid reimbursements.   But this threat was thwarted through litigation which culminated in a ruling by the U.S. Court of Appeals for the Ninth Circuit holding that physicians’ First Amendment freedom of speech rights under the privileged doctor-patient relationship permitted them to issue medical marijuana recommendations.  The Ninth Circuit's ruling in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), has provided a key foundation for modern medical marijuana regimes, but the firmness of that foundation could be questioned because the US Supreme Court has never addressed this issue directly.

As of this morning, the Supreme Court still has not addressed this issue directly, but it has now ruled in National Institute of Family and Life Advocates v. Becerra, available here, that the First Amendment limits what states can tell doctors and other health professional to say or not say.  Here is part of a fascinating passage (which even mentions medical marijuana, with my emphasis added) extolling the importance of broad constitutional protections in this realm:

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641.  Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F.3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring).  Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities:

“For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients.  In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients.  Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (1994) (footnotes omitted).

Further, when the government polices the content of professional speech, it can fail to “‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 8–9).  Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields.  Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.  “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail.

Given the modern politics of marijuana reform, I was not that worried that the Ninth Circuit's work in Conant v. Walters would be undermined anytime soon. But it would not be too hard to imagine Attorney General Jeff Sessions or other state or federal officials resistant to marijuana reform trying to heavily regulate how medical professionals can talk to patients about marijuana. This new SCOTUS precedent would seem to limit such efforts.

June 26, 2018 in Court Rulings, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, June 25, 2018

Formal FDA approval for Epidiolex means some part of the federal government finds some part of cannabis plant has "accepted medical use"

Download (1)This new CNN piece, headlined "FDA approves first cannabis-based drug," reports on the big news from the federal government concerning a very specific form of medical marijuana. Here are the details:

The US Food and Drug Administration approved a cannabis-based drug for the first time, the agency said Monday. Epidiolex was recommended for approval by an advisory committee in April, and the agency had until this week to make a decision.

The twice-daily oral solution is approved for use in patients 2 and older to treat two types of epileptic syndromes: Dravet syndrome, a rare genetic dysfunction of the brain that begins in the first year of life, and Lennox-Gastaut syndrome, a form of epilepsy with multiple types of seizures that begin in early childhood, usually between 3 and 5.

"This is an important medical advance," FDA Commissioner Dr. Scott Gottlieb said in a statement Monday. "Because of the adequate and well-controlled clinical studies that supported this approval, prescribers can have confidence in the drug's uniform strength and consistent delivery."

The drug is the "first pharmaceutical formulation of highly-purified, plant-based cannabidiol (CBD), a cannabinoid lacking the high associated with marijuana, and the first in a new category of anti-epileptic drugs," according to a statement Monday from GW Pharmaceuticals, the UK-based biopharmaceutical company that makes Epidiolex....

The FDA has approved synthetic versions of some cannabinoid chemicals found in the marijuana plant for other purposes, including cancer pain relief. Justin Gover, chief executive officer of GW Pharmaceuticals, described the approval in the statement as "a historic milestone." He added that the drug offers families "the first and only FDA-approved cannabidiol medicine to treat two severe, childhood-onset epilepsies."

"These patients deserve and will soon have access to a cannabinoid medicine that has been thoroughly studied in clinical trials, manufactured to assure quality and consistency, and available by prescription under a physician's care," Gover said. Epidiolex will become available in the fall, Gover told CNN.  He would not give any information on cost, saying only that it will be discussed with insurance companies and announced later....

It's an option for those patients who have not responded to other treatments to control seizures.  According to the Epilepsy Foundation, up to one-third of Americans who have epilepsy have found no therapies that will control their seizures. Shauna Garris, a pharmacist, pharmacy clinical specialist and adjunct assistant professor at the University of North Carolina's Eshelman School of Pharmacy, said the drug is effective and works somewhere between "fairly" and "very well." She has not used Epidiolex in her own clinical practice and was not involved in the development of the drug but said she's not sure it will live up to "all of the hype" that has surrounded it....

As part of the FDA's review of the medication, the potential for abuse was assessed and found to be low to negative, according to Gover. Still, this approval comes as the White House is said to be reconsidering federal prohibition of marijuana and as more and more states approve it for recreational and medicinal use. Gover said the approval signals "validation of the science of cannabinoid medication."

As the title of this post highlights, this news serves as still further proof of the misguided placement of marijuana as a Schedule I drug under the Controlled Substances Act defined as having "no currently accepted medical use in treatment in the United States." But, it should also be realize that this news serves as proof that the federal government, even without any reform to the CSA, can and will approve a cannabis-based medicine which has been "thoroughly studied in clinical trials [and] manufactured to assure quality and consistency."  Thus, the catch-22 comes from the fact that marijuana's placement on Schedule I precludes US-based companies from doing the types of clinical trials that the FDA demands.  (If we had a well-functioning federal government, marijuana surely would have been at least re-scheduled to Schedule II or III under the CSA many years ago.  But I digress....)

June 25, 2018 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, June 21, 2018

NORML releases report on local marijuana decriminalization efforts

Download (1)As reported in this posting, headed "NORML Releases Comprehensive Report Summarizing Local Decriminalization Laws," a major marijuana reform group has produced a new report on some major local marijuana reform efforts. Here is part of the posting:

Even though recreational marijuana remains criminalized in a majority of US states, more and more municipalities are moving ahead with local laws decriminalizing the possession of cannabis within city limits. For the first time, NORML has released a comprehensive breakdown of these citywide and countywide decriminalization policies.

Efforts to liberalize municipal marijuana possession penalties in states where cannabis remains criminalized have become increasingly popular in recent years. Since 2012, over 50 localities, such as Albuquerque, Milwaukee, New Orleans, Philadelphia, and St. Louis in a dozen states — including Florida, Georgia, Michigan, Pennsylvania, and Texas — have enacted municipal laws or resolutions either fully or partially decriminalizing minor cannabis possession offenses. Today, over 10.5 million Americans reside in these localities.

Here is part of the NORML report's "Executive Summary":

The decriminalization of cannabis, as first recommended by the US National Commission on Marihuana and Drug Abuse in 1972, is a public policy that calls for replacing criminal sanctions for minor marijuana-related offenses with the imposition of civil fines. 

Under full decriminalization, minor offenses are defined by statute as either non-criminal violations or infractions.  Violators are not subject to arrest.  Instead, they are cited and mandated to pay a small fine.  Violators are not subject to a court appearance nor are they saddled with a criminal conviction or record. 

Under partial decriminalization policies, minor marijuana offenses may remain classified as misdemeanor offenses.  However, violators are issued a summons in lieu of a criminal arrest.  Violators may still be required to appear in court and, if found guilty, will likely have to participate in community service or some other diversionary program instead of jail.  First-time offenders may or may not receive a criminal record depending on the jurisdiction.

Beginning with Oregon in 1973, 21 states and the District of Columbia have enacted versions of marijuana decriminalization.  (Eight of these states: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Vermont) have since replaced their decriminalization statutes with statewide adult use legalization legislation.)

Today, nine states — Connecticut, Delaware, Illinois, Maryland, Mississippi, Nebraska, New Hampshire, New York, and Rhode Island — have fully decriminalized activities specific to the private possession of small amounts of cannabis by adults.  Four additional states — Minnesota, Missouri, North Carolina, and Ohio — have partially decriminalized marijuana possession offenses.  In these latter jurisdictions, cannabis remains classified as a misdemeanor under state law, but the offense does not carry the penalty of jail time.  In New York, marijuana possession 'in public view' remains punishable as a criminal misdemeanor.

Numerous counties and municipalities have moved to decriminalize marijuana offenses locally in jurisdictions where state lawmakers have refused to make any statutory changes in the criminal classification of cannabis.  As public support in favor of marijuana law reform has grown, so too have local efforts by legislators and voters to address the issue at the municipal level.

Since 2012, nearly 60 local jurisdictions in various marijuana prohibition states — including Florida, Georgia, Michigan, Pennsylvania, and Texas — have enacted regional reforms removing the threat of either arrest and/or jail time for those who violate local cannabis possession laws.  The following report, while not intended to be all inclusive, highlights the growing number of cities and counties in marijuana prohibition that have moved forward with regionalized cannabis liberalization policies — policies which now govern over 10.5 million Americans. 

June 21, 2018 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Wednesday, June 20, 2018

"Canada just legalized marijuana. That has big implications for US drug policy."

Legalize-canada-flag-redThe title of this post is the headline of this effective new Vox article that reports on the big marijuana reform news from the big country up north and details some of the likely echoes for Canada's neighbor and the rest of the world. I recommend the entire piece, and here are excerpts:

Canada has become the first wealthy nation in the world to fully legalize marijuana.  The Senate approved Bill C-45, also known as the Cannabis Act, on Tuesday.  The measure was already approved by the House of Commons, so the Senate’s approval means it’s now set to become law.

The measure legalizes marijuana possession, home growing, and sales for adults.  The federal government will oversee remaining criminal sanctions (for, say, selling to minors) and the licensing of producers, while provincial governments will manage sales, distribution, and related regulations — as such, provinces will be able to impose tougher rules, such as raising the minimum age.  The statute largely follows recommendations made by a federal task force on marijuana legalization. Canadian and provincial governments are expected to need two to three months before retail sales and other parts of the law can roll out.

None of this may seem too shocking in the US, where already nine states have legalized marijuana for recreational use and 29 states have allowed it for medicinal purposes.  What sets Canada apart, though, is it’s doing this as a country.  Previously, the South American nation of Uruguay was the only one that legally allowed marijuana for recreational purposes.

Canada, like the US, is part of international drug treaties that explicitly ban legalizing marijuana.  Although activists have been pushing to change these treaties for years, they have failed so far — and that means Canada will be, in effect, in violation of international law in moving to legalize.  (The US argues it’s still in accordance with the treaties because federal law still technically prohibits cannabis, even though some states have legalized it.)...

In moving forward, the Canadian government is now walking a fine line: It’s hoping to legalize marijuana to clamp down on the black market for cannabis and provide a safe outlet for adults, but it’s risking making pot more accessible to kids and people with drug use disorders.  It is taking a bold step against outdated international drug laws, but it could upset countries like Russia, China, and even the US that have historically adopted a stricter view of the treaties.  And while Canadian lawmakers may feel marijuana legalization is right for their country, there’s a risk that legal Canadian pot will spill over to the US — perhaps causing tensions with Canada’s neighbor and one of its closest allies.  Whether Canada is successful in its legalization attempts will depend on how it strikes a balance between these concerns. And depending on how it pulls this off, it may provide a model to other countries interested in legalization — including the US....

Legalization carries risks too.  It could lead to more use and misuse by making pot cheaper and more available.  Mark Kleiman, a drug policy expert at New York University’s Marron Institute, estimates that in the long term a legal marijuana joint will cost no more to make than, say, a tea bag — since both products come from plants that are fairly easy to grow.  It would also be available to anyone (of legal age) in retail outlets after legalization — meaning it would no longer require a shady or secretive meeting with a drug dealer.  Those are benefits for people who use marijuana without problems, to be sure, but easier access could also pose a risk for people who can’t control their cannabis consumption.

Although marijuana isn’t very dangerous compared to some drugs, it does carry some risks: dependence and overuse, accidents, nondeadly overdoses that lead to mental anguish and anxiety, and, in rare cases, psychotic episodes.  Still, it’s never been definitively linked to any serious ailments — not deadly overdoses, lung disease, or schizophrenia.  And it’s much less likely — around one-tenth so, based on data for fatal car crashes — to cause deadly accidents compared to alcohol, which is legal....

Canada is striking a balance unlike that of the US’s legalization experiments so far. So far in the US, the eight states that have legalized pot sales have done so with a model similar to alcohol.  (Vermont has only legalized possession, not retail sales.)  Basically, they’re setting up their systems to allow a for-profit pot industry to flourish, similar to the alcohol industry.

Drug policy experts, however, often point to the alcohol industry as a warning, not something to be admired and followed for other drugs.  For decades, big alcohol has successfully lobbied lawmakers to block tax increases and regulations on alcohol, all while marketing its product as fun and sexy in television programs, such as the Super Bowl, that are viewed by millions of Americans, including children.  Meanwhile, alcohol is linked to 88,000 deaths each year in the US.

If marijuana companies are able to act like the tobacco and alcohol industries have in the past, there's a good chance they’ll convince more Americans to try or even regularly use marijuana, and some of the heaviest users may use more of the drug.   And as these companies increase their profits, they’ll be able to influence lawmakers in a way that could stifle regulations or other policies that curtail cannabis misuse.   All of that will likely prove bad for public health (although likely not as bad as alcohol, since alcohol is simply more dangerous).

There are policies that can curtail this, some of which Canada’s plan will allow.  For example, Canada’s measure restricts marketing and advertising. In the US, this is generally more difficult because the First Amendment protects commercial free speech.  (Tobacco marketing is largely prohibited due to a massive legal settlement.)  But in Canada, the restrictions could stop marijuana companies from marketing their product in a way that targets, say, children or people who already heavily use cannabis....

Canada’s bill also lets provinces entirely handle the distribution and sales of marijuana — up to letting provincial governments directly manage and staff all pot stores by themselves. While state-run liquor stores aren’t unheard of in the US when it comes to alcohol, it’s widely seen as risky in America with marijuana: Since cannabis is illegal at the federal level, asking state employees to run marijuana shops would effectively ask them to violate federal law.  But since Canada is legalizing marijuana nationwide in one go, it can do this — and several provinces are expected to take up this option.

The promise of government-run marijuana shops is that they could be better for public health.  In short, government agencies that run shops are generally going to be more mindful of public health and safety, while private companies are only going to be interested in maximizing sales, even if that means making prices very low or selling to minors and people with drug use disorders.  Previous research found that states that maintained a government-operated monopoly for alcohol kept prices higher, reduced youth access, and reduced overall levels of use — all benefits to public health.

June 20, 2018 in History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, June 14, 2018

"The Politics of Passing and Implementing Medical Marijuana in Ohio"

The title of this post is the title of this notable new paper just posted to SSRN authored by A. Lee Hannah.  Here is its abstract:

Why did the state of Ohio adopt a medical marijuana policy? And why did it do so in 2016?  This article addresses these questions by examining the diffusion of medical cannabis policy across the U.S., by describing the evolution of images related to the policy, and by exploring the content of the law.

Using evidence from legislators’ remarks on the floor of the Ohio General Assembly and interviews with activists and analysts, I show that the direct initiative helped push members of the Ohio General Assembly to write and adopt a medical marijuana law (MML) when they were unlikely to do so. Next, I analyze trends in media coverage of medical marijuana to demonstrate that the spread of the policy has also been aided by shifting images related to the beneficiaries of medical cannabis programs.  Turning to the content of the law, I find that Ohio’s MML is written similarly to later adopters in the Midwest – where laws are more restrictive and medicalized. Finally, I assess how the characteristics of the law and looming elections will affect the implementation of Ohio’s Medical Marijuana Control Program.

June 14, 2018 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)